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Ethical Practice & the MCA: Development of the Deciding Right document - 04/01/13

The Mental Capacity Act (2005) (MCA) was hailed by UK clinicians (especially geriatricians) as a lucid piece of legislation.  We thought it would greatly reduce the uncertainties regarding the standards for assessing mental capacity for decision making and how to set about making ‘best interests’ decisions in clinical practice. Since then we have come to realise that in using the Act’s approach, there are many steps that require ‘values-based judgements’ on the part of clinicians.  We can learn how to do this better by openly discussing our uncertainties, sharing experience and developing clear operational guidelines.

Dr Claud Regnard, a Palliative Care Physician at St Oswald’s Hospice in Newcastle upon Tyne recognised that clinicians tended to oversimplify these processes and in so doing they were unintentionally perverting the law, particularly in relation to DNAR (‘Do Not Attempt Resuscitation’) decisions. He also recognised that the extended implications of the MCA included concepts such as advance care planning.  He established a consensus group in the North East of England, leading to the ‘Deciding Right’ document posted herewith on the UKCEN website. 

This document is entirely consistent with the ethos of the MCA; it seeks to standardise the approach to decision-making in relation to capacity, best interests and, crucially, resuscitation decisions and advance decisions to refuse treatment.  This approach has been widely adopted in the North-East, including the ambulance services, care homes, hospitals trusts and general practitioners.

Although ‘Deciding Right’ has been widely adopted, it remains a ‘work in progress’, as we identify difficulties in practice, potential contradictions and changes in the mores of society.  It will no doubt prove to be a rich seam for ethical excavation.

What is ‘Deciding Right’?

Briefly, Deciding right is the UK’s first integrated policy on making care decisions in advance and covers three key national frameworks, the 2005 Mental Capacity Act, the 2007 BMA/RC/RCN joint statement on CPR decisions and the 2011 NHS end of life care guidance on advance care planning. Where appropriate it applies to all ages.

Its key components are ‘C-A-R-E’:

C hoice and capacity: The right of individuals to choose their care preferences, either now should they lose capacity in the future or, if they do not have capacity, be assured that the Mental Capacity Act process of Best Interests will estimate what decisions they would have made.

A greement: The right choice comes from shared decision making which is a partnership between two experts, the individual and the professional

R ight documents: Having the same documents in every care setting ensures that decisions are centred on the individual, not the organisation. These include a regional DNACPR for any age, an Emergency Health Care Plan for any age, and an Advance Decision to Refuse Treatment for those aged 18 years and over.

E ducation: The right for everyone to have the resources to understand and use Deciding right.

Full details, including resources and all the regional forms are available at

Deciding Right PDF

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